Mehar Singh vs The State

H.R. Sodhi, J.—This is an appeal by Mehar Singh who has been convicted by the Sessions Judge, bhatinda, u/s 302, Indian Penal Code, for having committed the murder of his own father Chanan Singh, and sentenced to imprisonment for life. The convict has two brothers Ptitam Singh and Sukhdev Singh.

The prosecution case is that the deceased and Mehar Singh accused lived together in the same house in Mohalla Mehnawala in Bhatinda town, while Pritam Singh and Sukhdev Singh lived separately from their father. Mehar Singh was an idler and Miad been wasting money. He would always put demands on his father and some time about three years before the occurrence, the deceased. complained to Sucha Singh P.W. 2 that the accused was harassing him and demanding money from him. The accused was taken to the police and the dispute between the father and the son got settled there. Chanan Singh sold some of his land for Rs. 100,000 about four years before the occurence and distributed the amount amongst his sons and himself. He gave one fourth of the amount, that is, Rs. 2,500/- to the accused also as his share. All this was not sufficient for the accused and he was continuously making demands for more money.

It is alleged that on 29Lh August, 1966, t.t about 11 A.M. the accused was alone in the house and he broke open the box of his father by deafening the hasp. The deceased by chance turned up at that time and gave abuses to him. This led to grappling between the son and the father but the latter fell on the ground. The accused placed a piece of his turban cloth around the neck of his father and strangulated him to death. He then went to the village Lalewala where his sister Jangir Kaur used to live and brought her to BhatiDda. After all this, he went to Sucha Singh P.W. 2 at about 7.30 P.M. and told him all about the incident. Sucha Singh P.W. is a distant collateral of Chanan Singh deceased and a Lambardar. He had been President and Vice President of Municipal Committee, Bhatinda. The accused made a confession of his guilt to him giving all the details and at that time Kishna Ram P.W. 3 was also present. Both Sucha Singh and Kishna Ram P. Ws. brought the accused to his house and saw the dead body of Chanan Singh lying in one corner of the room with the help of torch-light. Leaving Kishna Ram on the spot, Sucha Singh took the accused to the Kotwali which is at a distance of four furlongs and handed him over to the police. On the basis of this information a report was recorded by Sub-Inspector Rachhpal Singh P.W. 8 at 8 P. M u/s 302, Indian Penal Code. The accused was arrested immediately.

The Sub-Inspector then went to the place of occurrence along with Sucha Singh P W. reaching there at about 9. 30 P. M. Kishna.Ram P. W. was also present there along with others. In the room where the dead body of the deceased lay, there were foot-prints, about 10 or 12 in number and some of them were with shoes on. The Sub-Inspector covered two foot-prints, one of the left foot and the other of the right foot. He then prepared moulds Exhibits P. 3 and P. 4. of these foot-prints and the same were deposited in the police Malkhana on 30th August, I; 66. The box Exhibit P. 2 of the deceased was taken into possession by the police but its hasp had been removed though the lock was still in it. No cash was to be fouiid in the box but it contained a cheque bonk, some clothes and other articles.

Dead body of the deceased was despatched to the mortuary for post-mortem examination which was conducted by Dr. V. M. Prinja, Chief Medical Officer. Bhatinda, P. W. 1. He found .1" broad ligature mark all round the neck. The strangulating cloth wich was yellow in colour had three turns around the neck and was twisted on the back of the neck towards the left side. The deceased was at that time wearing a pair of shoes. There were to be found three abrasions as well, one on the light elbow, the other on the back of the left elbow and another on the chest. Death, in the opinion of the doctor, was due to asphyxia resulting from strgulation by the yellow band of the turban. The doctor removed the turban Exhibit P. 1 from around the neck of the deceased.

In the course of investigation, specimen moulds of two foot prints of the accused were prepared in the presence of Shri Birbal, Executive Magistrate 1st Class, Bhatinda, P.W. 4, on 1st September, 1966. On completion of the investigation, the accused was ohallaned and later comitted by the Judicial Magistrate it Class to take his trial u/s 302, Indian Penal Code, in the Court of Session.

The only evidence against the accused consisted of his extrajudicial confession said to have been made by him to Sucha Singh and Kishna Ram P. Ws. Extra-judicial confession is often a weak type of evidence and weight to be attached to it depends on the facts and circumstances of each case. It is not an invariable rule that a conviction cannot be based in any case on an extra-judicial confession though the rule of prudence requires that one must look up for independent corroboration in material particulars which not only proves corpus delicti but also connects the accused with commission of the crime. Corroboration will lend assurance to the conviction that the confession so made was really true and voluntary. Facts and circumstances which are relied upon as corroboration have to be proved by independent evidence. The duty to scrutinise evidence of extra-judicial confession with great cafe is all the more greater when the offeree is of a serious type like murder. In-the instant case, Sucha Siugh who gave evidence at the trial on 10th March, 1967, more than six months after the occurrence, tried to reproduce the exact words of the confession in the following terms:

I demanded money from my father since I had no money with me. He did net give money to me. At about 11 AM, when ) was alone in my house I broke the box by detaching the hasp. My father appeared there at that time. He uttered abuses to me. We grappled and my father fell on the ground. I placed sofa (a piece of cloth) around the neck and strangulated him to death. Then I went to village Lalewala for bringing my sister. I have brought my sister from the said village. Now I have come to you. You may save me.

Kishna Ram P.W. 3 turned hostile and was cross-examined by the Public Prosecutor. He first stated that that the accused had gone to Sucha Singh in his presence and had told them that they should accompany him to his house where his father was lying dead. This did not amount to confession of guilt by the accused person and when cross-examined by the Public Prosecutor and confronted with his statements before the police and the committing Magistrate he deposed that the accused had stated to him and Sucha Singh that he (accused) hart killed his father by strangulation as the accused had been demanding money but the deceased did not give it. It was stated by the witness that the accused had said that he had broken the the box with a phala. Sucha Singh and he then accompanied the accused to the house of the deceased where the latter lay dead in a corner of the room and the box Exhibit P. 2 was lying broken in that room. No doubt, the prosecution got in the statement of Kishna Ram P.W. that the accused had mads confession to him but there is no escape from the irresistible conclusion that the said witness is unreliable. The prosecution itself by declaring him hostile lo?t faith in his truthfulness and how it is safe for a Court to rely on the statement of such a witness when he deposes to an extra-judicial confession, more so when-confession is the only evidence against the accused person. It is stated by him that Jangir Kaur sister of the accused came to the spot after he and Sucha Singh had reached there but he is contradicted by Sucha Singh, according to whom, Jangir Kaur was already present when they reached there. If reliance cannot be placed on the evidence of Kishna Ram P.W., the only evidence left with regard to extra-judicial confession is that of Sucha Singh P.W. He is a collateral of the deceased and a Lambardar. He has deposed to a quarrel having taken place between the father and the son about three years before the occurrence which was settled through police intervention. No independent evidence which could corroborate the statement of Sucha Singh on this point has, however, been produced by the prosecution. Foot-prints were lifted from the spot and moulds prepared but the prosecution abandoned that piece of evidence obviously because it did not turn out to be helpful to the prosecution. The prosecution has relied on the following circumstances as corroborative of the confessional statement of the accused:

(1) that a box of the deceased with a detached hasp was found by the police in the room where the dead body lay and that phala (Exhibit P. 5) was also lying nearby;

(2) that a piece of safa of yellow colour was found around the neck of the deceased and this is what had been stated by the accused to Sucha Singh P.W.;

(3) that the accused was seen by Bakhtawar Singh P.W.6 some where about 11.30 A.M. soon after the occurrence at a distance of 15-20 Karams from his house when he was proceeding towards the bus stand, and that on enquiry he had told Bakhtawar Singh that he was going to Lalewal. It may be mentioned that Jangir Kaur sister of the accused was living in this village and according to the prosecution she came to the spot on the same day;

(4) that the accused looked to be nervous when Bakhtawar Singh P.W. met him; and

(5) that the deceased and the accused alone lived in the house where the deceased was strangulated. The Sessions Judge too has relied on the above circumstances as a affording ample corroboration to the extra-judicial confession.

We have given our careful thought to the matter and are not inclined to agree with the Sessions Judge. The mere recovery of the box with hasp broken does not lead to the inference that it was the accused who had broken it. For the breaking open of the box by the accused, there is no evidence except the confession. The circumstance that the box was broken open by the accused should have been proved by evidence other than that of confession itself. It would certainly have been a corroborative piece of evidence constituting a link in the chain which could establish the identity of the culprit who committed the murder if it was shown by any evidence aliunde that the accused broke the hasp. In this aspect of the matter the recovery of phala Exhibit P. 5 will also make no difference. Similarly, the fact that a safa of yellow colour was found tied around the neck of the deceased when the dead body was recovered by the police or when the post-mortem examination was performed by the doctor does not furnish any corroboration to the commission of the murder by the accused For ought we know, a person who has not committed a crime but has seen, a dead body in par-ticluar condition may make a false confession that he murdered the deceased or a confession may be foisted on the accused by a witness who himself has seen such a body In the absence of any evidence to show that the accused had at any time before the death of the deceased handled the safa or procured the same, the mere discovery of that sa/a around the neck of the deceased cannot lend any assurance of truth to the alleged confessional statement of the accused that he had strangulated the deceased with that safa.

As regards meeting of the accused with Bakhtawar Singh P.W. 6, there is no guarantee of the correctness of time when both met and it is difficult for a villager after such a long lapse of time to exactly state that he met the accused at 11-30 A. M. This witness does not remember the persons other than the accused who met him in the way on that day and it is admitted by him that he was not on visiting terms with the accused. The impression gathered by him that the accused was nervous might have been ill-founded particularly when there was no conversation between them which could indicate the cause of nervousness or of the impression formed by him. In our opinion Bakhtawar Singh's evidence is not worthy of credence.

The next circumstance to which a reference has been made is that the accused and the deceased lived togther in the same house. The evidence on this point is wholly discrepant and on the material available on the record it cannot possibly be held to have been proved that they really lived together. Sucha Singh P.W. states in his examination in-cheif that Sukhdev Singh P.W. 7 brother of the accused lived with the accused and his father Chanan Singh deceased in one house on the day of the occurrence while Pritam Singh lived separately. Sukhdev Singh, according to this witness, has a wife and children. It is deposed by Sucha Singh that the accused had been residing mostly in village lalewal with his sister Jangir Kaur but for the previous five years he was residing with his father and Sukhdev Singh. Again in re-examination, Sucha Singh resiled from the positicn taken up by him earlier and stated that Sukhdev Singh did not reside with Chanan Singh and the accused in the same house on the day of the occurrence as he had shifted his residence along with the children to the kotha erected in the field about two years before the occurrence Kishna Ram P.W. 3, deposed that the accused was residing in Bhatinda only for one year previous to the occurrence. Sukhdev Singh was produced as P.W.7 and he stated that about 2 or 2(1/2) years before the occurrence, the accused had sold the house. Wherein the occurence had taken place to Pritam Singh their elder brother and Chanan Singh deceased took up residence in that house along with Pritam Singh, The accused, as stated by his witness, was wandering hither and thither and also went to Lalewala. In reexamination the witness changed his position and stated that his father and the accused took up residence in the house in question about 10 days before the occurrence. The evidence in respect of occupation of the house by the deceased, accused, Pritam Singh and Sukhdev Singh P. W. is so discrepant and unsatisfactory that it is not understood how the trial Judge came to the conclusion that the accused and the deceased lived together in the same house. It could be a piece of corroborative evidence only if it was established that the accused and the deceased lived together in the same house but the prosecution has failed to prove the same. In such a situation, we are of the view that it is not safe to base a conviction for the offence of murder on the solitary statement of Sucha Singh P.W.2 whose testimony apart from being at variance with that of Krishna Ram P.W. is not corroborated by any evidence circumstantial or otherwise.

In the result, the appeal is allowed, conviction and sentence of the Appellant is set aside and he is directed to be set at liberty forthwith.